Second Circuit Reverses Denial of a Continuance; Finds NY Penal Code 130.65 is not an Aggravated Felony

Flores, a native and citizen of Honduras, entered the United States without inspection in 1991. He married a U.S. citizen and raised a family in the United States. In 2009, he was convicted, pursuant to a jury verdict, of two counts of first‐degree sexual abuse in violation of N.Y. Penal 130.65. After several continuances, he requested a further continuance to pursue adjustment of status under section 245(i) of the INA, in conjunction with a waiver of inadmissibility under INA § 212(h). He also applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The Immigration Judge (IJ) denied his request for a continuance, and found him ineligible for adjustment of status because the priority date was not current on the 2001 petition filed by his sister, and the petition filed by U.S.-citizen wife hadn't been adjudicated yet. The IJ further found that his sexual abuse conviction was a sexual abuse of a minor aggravated felony that precluded asylum eligibility, and particularly serious crime that precluded withholding of removal eligibility. The IJ denied CAT protection on the merits.

On appeal, the Second Circuit determined that the IJ abused his discretion in denying Flores' request for a continuance because he did not evaluate if the petition filed by his wife was prima facie approvable. Furthermore, the Board of Immigration Appeals erred in affirming the denial of the continuance based on its determination that Flores' conviction for an aggravated felony precluded him from applying for a 212(h) waiver. The Second Circuit noted that even if his convictions qualified as aggravated felonies, because he had never been accorded lawful permanent residence, the convictions would pose no bar to a 212(h) waiver.

The Second Circuit additionally found that the IJ erred in his application of the modified categorical approach to determine that Flores was convicted of an aggravated felony. Although the statute at issue was divisible as to some elements (i.e. whether the victim was a person under the age of 11, a person incapable of giving consent), all four prongs criminalized acts of "sexual contact" that could fall short of actual abuse. Thus, it was improper for the IJ to consult the complaint to determine that Flores' conduct rose to the level of abuse. Though the Second Circuit affirmed the IJ's determination that Flores' conviction was a particularly serious crime barring asylum and withholding, it still found that the improper use of the modified categorical approach could have a significant impact on the discretionary determination for adjustment of status, and thus, Flores was prejudiced by the IJ's determination.

Though the Second Circuit remanded the case for a proper analysis under the modified categorical approach, its analysis suggests that all four prongs of the statute may criminalize acts that do not rise to the level of abuse, and as such, may never qualify as a sexual abuse aggravated felony.

The full text of Flores v. Holder can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/cf44b58b-7db5-432c-9649-42019c135a9c/5/doc/12-2406_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/cf44b58b-7db5-432c-9649-42019c135a9c/5/hilite/